Dismissed

M/S Nif Private Limited and Another v. Presiding Officer, Labour COURT(4), Kanpur Nagar and Another

Allahabad HC1 Nov 2018WRIC/35860/2018

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award reinstating a workman illegally terminated without a domestic enquiry. The High Court rejected the claim that evidence was sufficient to prove misconduct and dismissed the petition, upholding the reinstatement award with 50% back wages.

What the court decided

AI extract

M/S Nif Private Limited and Another Vs… — Labour and Industrial Disputes | Allahabad HC (2018)

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Court No. - 36 Case :- WRIT - C No. - 35860 of 2018 Petitioner :- M/S Nif Private Limited And Another Respondent :- Presiding Officer, Labour Court(4), Kanpur Nagar And Another Counsel for Petitioner :- Chandra Bhan Gupta Counsel for Respondent :- C.S.C.

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the petitioners and perused the record.

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The present writ petition is directed against the award passed by the Labour Court dated 3.7.2018 whereby it had answered the reference in favour of the workman granting him award of reinstatement with 50% of back wages w.e.f. the date of illegal termination i.e. 25.12.2013.

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The reference made to the Labour Court reads as under:-

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“ vk|kS fxd fookn dk foojs .k

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D;k lsok;kstd }kjk vius Jfed Jh gk:u vyh iq= Jh vkf'kd vyh in& jsQzhtjs'ku esUVhu s Ul vkijsVj dks fnukad 25&12&13 ls dk;Z ls i`Fkd@oafpr fd;k tkuk mfpr ,oa oS/kkfud gS\ ;fn ugha] rks lacaf/kr Jfed D;k fgrykHk@{kfriwfrZ dks ikus dk vf/kdkjh gS ,oa vU; िकस fooj.k lfgrA ”

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The dispute was raised about the fact that the respondent workman was appointed on the post of Compressor Operator on 1.12.2012 by stating that he was working as a helper. His job was to operate the compressor machine and compressor pump so as to keep the refrigeration tank chilled.

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On 25.12.2013, the petitioner/employer did not allow the respondent workman to work with the contention that he had added 'lime' in the tank meant for storing milk for the plant. The termination order was, admittedly, oral.

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On the dispute raised by the workman, reference was made vide order dated 10.9.2014.

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Admittedly, no disciplinary enquiry was conducted by the employer prior to the oral termination order dated 25.12.2013. It is, however, contended by the learned counsel for petitioner that it was open for the employer to prove the misconduct committed by the workman before the

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Labour Court so as to justify the act of termination.

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Reference has been made to the judgment of the Apex court in Engg Laghu Udyog Employees Union vs. Judge, Labour Court reported in 2003 (12) Supreme Court Cases 1 to substantiate his submission.

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Submission is that sufficient evidence was brought before the Labour Court to justify the action of the employer in oral termination of the services of the workman but those evidences were conveniently ignored by the Labour Court. It has illegally granted award of reinstatement with 50% back wages on the ground that no disciplinary enquiry had been conducted. This approach of the Labour Court is clearly against the law laid down in the above noted decision of the Apex Court.

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He further submits that the respondent workman had worked for only one year from the date of engagement and, therefore, the Labour Court was not justified in granting reinstatement with 50% back wages. On the principle of "no work no pay", the employee could not have got wages and moreover, for a workman who had worked only for one year, the award for reinstatement could not have been passed.

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Testing all these submissions of learned counsel for the petitioner, having gone through the judgment of the Apex Court as relied upon by him, there cannot be any dispute to the fact that if no domestic enquiry is conducted by the employer before passing the termination order or the domestic enquiry is vitiated, the employer was at liberty to adduce evidence before the Labour Court to justify the dismissal.

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In the instant case, it is held that the respondent workman was appointed on a post of Compressor Operator. The oral termination order was passed on 25.12.2013 on the the allegation of misconduct i.e. putting 'lime' in the tank of milk. The said allegation could have been proved in the domestic enquiry, if any, conducted by the employer. Admittedly, no domestic enquiry had been conducted.

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In that eventuality, another option before the petitioner employer was to bring evidence before the Labour Court to prove the misconduct of the workman.

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In the instant case, only oral evidences were brought before the

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Labour Court with the statement of E.W.-1 and E.W.-2. E.W.-1 was Human Resource Executive whereas E.W.-2 was the General Manager. Both the higher officials who appeared before the Labour Court had stated that they received a complaint regarding misconduct of the workman but they did not conduct any domestic enquiry. However, as to whether the misconduct was actually an act of the workman was not proved, inasmuch as, no one was brought before the Labour Court to state that he had seen the workman putting 'lime' in the milk. The statement of E.W.-1 and E.W.-2 are based on the complaints received by them, veracity of which had never been examined by them.

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For the aforesaid, it cannot be said that the employer had succeeded in bringing sufficient evidence before the Labour Court so as to prove the alleged misconduct of the respondent workman.

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For the aforesaid, it cannot be said that the Labour Court had erred in holding that the oral termination order dated 25.12.2013 was bad as it was passed in contravention of the Standing Order.

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As the workman was illegally terminated, the effect of setting aside, thereof, would be that he would be entitled for reinstatement with back wages. However, noticing the fact that for a period of approximately 5 years, the workman did not work though for the fault of the employer, only 50% back wages has been awarded.

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The submission of learned counsel for the petitioner that since the total period of working of the employer was only one year, it was not open for the Labour Court to award reinstatement with 50% back wages, is misconceived, inasmuch as, the Apex Court in Deepali Gundu Surwase

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v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others reported in (2013) 10 SCC 324 has held that in case, the termination order is found illegal, the award of reinstatement is automatic and in case, the employer disputes grant of back wages to the workman, the burden is on him to prove that the workman was engaged in a gainful employment during the period of termination, once the workman states that he did not get employment elsewhere.

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The award of back wages granted by the Labour Court, therefore, cannot be said to suffer from any error of law.

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Lastly, it is contended by the learned counsel for the petitioner that the question as to whether the workman was working on a post of Refrigeration Maintenance Operator or on a post of Helper, was not subject matter of dispute before the Labour court.

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Noticing the said submission, it is relevant to note that before arriving at its finding on the validity of the termination order, the Labour Court was required to look to the nature of the employment of the workman. Having gone through the material on record, a categorical finding of fact has been returned by the Labour Court that the respondent workman was working on the post of Refrigeration Maintenance Operator. This finding could not be assailed by the learned counsel for the petitioner by placing any cogent material from the record.

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There is, therefore, no requirement to enter into the correctness of the said finding.

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The writ petition is, accordingly, dismissed . Order Date :- 1.11.2018 Brijesh (Sunita Agarwal, J.)

M/S Nif Private Limited and Another v. Presiding Officer, Labour COURT(4), Kanpur Nagar and Another

Case brief

What is this about?

What the court decided

M/S Nif Private Limited and Another v. Presiding Officer, Labour COURT(4), Kanpur Nagar and Another

Case brief

What is this about?

What the court decided

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